Saturday, April 19, 2014

New DI Governance Proposal --The Wrong Fix for What Definitely Needs Fixing

Josephine (Jo) R. Potuto, Richard H. Larson Professor of Constitutional Law and Faculty Athletic Representative, University of Nebraska

            The NCAA Division I Steering Committee has proposed a new Division I governance structure.  It retains an all-D I governance part and adds an autonomous part for 5 Conferences (ACC, B1G, Big 12, Pac 12, SEC).  One thing the Steering Committee got right.  It acknowledges that the 5 Conferences need autonomy, particularly to use our resources to enhance the treatment of student-athletes.  After that, there is not much positive to say.   Remarkably, the proposal would institute a governance structure that may be worse than what we have now. 

            First, autonomy apparently doesn’t mean autonomy.  The 5 Conferences had a plan for autonomous governance.  In important ways the Steering Committee shot it down. 

            The Steering Committee lists specific subject areas for autonomy, leaving little room for the 5 Conferences to respond to issues not currently anticipated.  It accepted the 5 Conference voting model:  one vote for each of the 5 Conference schools and also student-athlete voters.   But it proposes a supermajority vote to adopt policy or bylaws (2/3 of all voters and a vote in favor of 4 of the 5 conferences).  That makes it difficult, if not impossible, to get much of real substance done.  And if we do?  The CEOs from the 5 Conferences on the DI Board can vote a bylaw down if it has an undue impact on competitive equity for everyone else.  Competitive equity for schools with lesser resources always translates into limits on what can be done to benefit student-athletes.  Restricting this override to CEOs from the 5 Conferences is better than having the full Division I Board weigh in.  Nonetheless.  The mantra of competitive equity is the very reason why autonomy is needed.  And, yet, here it is again.  Another major constraint is that it appears that the 5 Conferences will have neither the authority to interpret the bylaws we adopt nor to grant waivers from them.  

            The combined DI governance side is no better.  The CEOS no longer will be an operational board.  Certainly the right move.  On their own campuses they oversee the medical school.  But they likely would not presume to act as dean and they certainly would not try their hands at surgery. 

            There will be a new Council to do the heavy lifting.  Again, the right move, at least in theory.  The plan is a Council of 38 members, with 60% ADs.   Do ADs need to be more involved and have more influence?  Absolutely.  They  need to have substantial input in the development of the rules by which they operate.  But 60 percent is too much, especially as Council seats also are reserved for other athletic administrators.  The end result may be fewer than five Faculty Athletic Representatives on the Council and perhaps none from the 5 Conferences.  No issue is exclusively athletic or campus/academic.  Optimum policy results from full vetting with all perspectives at the table, something that will be missing from the new Council.

            By my count, the NCAA and 5 Conferences are facing three antitrust lawsuits, the Keller/O’Bannon litigation, concussion lawsuits, and the Northwestern student-athlete union effort.  In one way or the other, all of these claim the collegiate model is a sham.  The Steering Committee proposal is an extraordinary governance solution for an NCAA and universities attempting to confront the perception and embody the reality that intercollegiate athletics are different in kind from professional sports because we embody a COLLEGE model. 

            I believe it was Winston Churchill who said that you should never waste a good crisis.  Unfortunately, it looks like that’s exactly what DI is about to do.

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